Vox populi? Vox humbug! - Rising tension between the South African executive and judiciary considered in historical context - part two
Abstract
Part One of this article traced rising tensions between the South African executive
and the judiciary on the question of the separation of powers. This situation was then
contrasted and compared with a clash which took place in the 17th century between
King James I of England and Chief Justice Edward Coke. In Part Two of this article
attention is focused on two specific cases which arose out of the clash between
James and Coke - Prohibitions Del Roy and The Case of Proclamations. The article
then turns to a discussion of the lessons which can be drawn from these cases. The
arguments which were raised in the cases are contrasted and compared with more
contemporary arguments advanced in the context of the present conflict between the
South African executive and the judiciary. The views of Ronald Dworkin comparing
'majoritarian' and 'constitutional' conceptions of democracy are examined in the
context of this debate. Tentative conclusions are then drawn and warnings issued of
the negative consequences for South Africa if the potential conflict between the
executive and the judiciary is not properly resolved.